On 26 October 2017, the Commonwealth Social Services Minister Christian Porter introduced the Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017 (the Bill), which, as we mentioned in our previous article, delivers on the current Government’s promise to seek redress for survivors of institutional child abuse.

Background to the Bill

According to the Explanatory Memorandum to the Bill, the Commonwealth Redress Scheme for Institutional Child Sexual Abuse (the Redress Scheme) is the Commonwealth’s response to the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission).

In the Royal Commission’s report into Redress and Civil Litigation, discussed in another previous article, 2015, one of the key recommendations was the establishment of a national redress scheme. This Bill is the Commonwealth’s response to the Royal Commission’s recommendation.

Details of the proposed Redress Scheme

The Bill, if passed, would establish a tripartite Redress Scheme for survivors of institutional child sexual abuse which includes:

a redress payment of up to $150,000

access to counselling

direct personal apology from the institution involved.

Under the Bill, only those who suffered abuse in:

Commonwealth institutions

territory institutions

non-government organisations registered in a territory

actions which occurred overseas

are covered by the Redress Scheme.

State government institutions and non-government organisations would need to opt-in to the Redress Scheme on a “responsible entity pays” basis. This means that the Commonwealth Government will fund the Redress Scheme but expect payment from the responsible entity each quarter, with a 20% late fee for any organisation unwilling to pay on time.

The Redress Scheme is intended to operate for a ten-year period from 1 July 2018 with a focus on retrospective child abuse only. The process of applying for the Redress Scheme is said to be on a “low-evidentiary basis, on the basis of the reasonable likelihood that the events occurred.” This means that claims will only be available to victims of historical abuse which occurred prior to the Redress Scheme’s start date of 1 July 2018, on the basis that they most likely occurred. No new claims of abuse will be covered under the Redress Scheme.

Importantly, a claim under the Redress Scheme has the effect of releasing the participating institution from any further liability, meaning the survivor will, as part of the Redress Scheme, undertake not to bring or continue any civil claim against the responsible participating institution in relation to the specific abuse.

Participation of state and territory parties

According to the ABC News, “an estimated 60,000 victims” would not be eligible for the Redress Scheme, as proposed, as the abuse occurred in state institutions or non-government institutions which are not currently on the list of institutions able to opt-in to the Redress Scheme. Under the proposed scheme, any victims convicted of sex offences or sentenced to prison terms of five years or more for crimes such as serious drug, homicide or fraud offences, would also be excluded.

Additional complications have also been raised as non-government school systems would still be open to claims in multiple jurisdictions, unless there was nationwide buy-in from all schools in the system.

In particular, the Catholic Church has proposed its own scheme, addressed in this previous article, and Melbourne’s Yeshivah Centre, a Jewish Orthodox institution, also addressed in another previous article, has also proposed their own civil redress scheme. Both institutions will not participate in the Commonwealth scheme unless there is nationwide buy-in from all States to protect them from other claims in multiple jurisdictions.

Impact on schools

Schools should be aware of the impact of the Commonwealth’s proposed Redress Scheme, if it is established in its current form, on any current cases of historical child sexual abuse and any current guidelines regarding compensation for child sexual abuse from their governing institutions. It will also be interesting to see how the States will respond to the Commonwealth’s proposal to opt-in to a national Redress Scheme, and whether this response will be affected by the Final Report of the Royal Commission due to be released on the 15 December 2017.

About the Author

Lauren Osbich is a Legal Research Consultant and School Governance reporter. She can be contacted here.